A party to a contract who fails to perform its obligations is liable to compensate the other party for the losses suffered as a result of such failure.

Debangsu Basak, J.

The plaintiff claims compensation on account of breach of contract by the defendant. This is the Second suit between the parties. In the previous suit being C.S. No. 317 of 1997 the plaintiff claimed compensation on a conduct of breach of a different contract.

The parties entered into a contract in which the plaintiff agreed to provide assistance to the defendant for commissioning of electrostatic precipitator unit no. 2 at Madhya Pradesh. The parties agreed that the wok will be completed within 180 days from the date of handing over site. The defendant agreed to provide all contract materials free of cost as also other provisions. The plaintiff claims that the defendant did not provide the materials within hundred and 80 days. The plaintiff claims that due to the defaults of the defendant, the plaintiff was made to expend nearly four years to execute a contract which was to be completed within 180 days. The plaintiff claims compensation on account of the delay caused by the defendant.

The plaintiff applied for examination of its witness on commission. The application was moved upon notice and was allowed by an Order dated July 31, 2014. The plaintiff duly adduced evidence before the Commissioner. In spite of notice, the defendant did not appear before the Commissioner. The witness of the plaintiff was not cross-examined by the defendant. The defendant did not produce any witness at the hearing of the suit.

On the date of hearing of the suit, the learned Advocate for the defendant submitted that, the defendant was yet to execute any Vakalatnama in her favour. The suit was heard finally. On the conclusion of the hearing I posted the suit to allow the plaintiff to file a written notes on arguments. On such date an Advocate claiming to appear for the defendant wanted to file a written notes on arguments. The same was not allowed in absence of the Court being apprised as to the filing of the Vakalatnama on behalf of the defendant. In any event, no argument was advanced at the hearing on behalf of the defendant for the defendant to file any written notes on argument.

The parties went to trial on six issues which are as follows: –

1. What that the terms and conditions of the contract in great by and between the plaintiff and the defendant?

2. Whether the defendant failed to perform obligations under the contract?

3. Whether the defendant was responsible for the delay in execution of the work by the plaintiff beyond the stipulated period?

4. Is the plaintiff entitled to a decree for a sum of Rs.26,03,389/- as per particulars set out in paragraph 22 of the plaint?

5. Is the plaintiff entitled to interest?

6. What other reliefs is the plaintiff entitled to?

The first issue is taken up for consideration. The parties entered into a contract in which the plaintiff was to erect and provide assistance to the defendant for commissioning of electrostatic precipitator unit no. 2 and its accessories at Madhya Pradesh. The plaintiff enumerates the terms and conditions of the contract between the parties in paragraphs 2 and 3 of the plaint. The plaintiff claims that the terms and conditions enumerated in paragraphs 2 and 3 of the plaint will appear from the correspondence exchanged between the parties namely the letter dated November 4, 1989, November 10, 1989, two letters dated March 31, 1990, June 22, 1990 and December 8, 1990. The existence of the contract, as well as, the terms and conditions thereof as stated by the plaintiff in the plaint is not denied by the defendant in the written statement. The defendant has not produced any evidence to contradict the claim of the plaintiff.

The plaintiff refers to Exhibits ‘A’, ‘B’ and ‘C’ and claims that, the terms and conditions of the contract can be had from these exhibits. The letter dated December 8, 1990 been Exhibit ‘C’ is a letter of intent and this specifies that the terms and conditions of the present contract will be in line with the contract for unit no. 1. The